Month: July 2020

Chief Justice Roberts Rewrote Morrison v. Olson

Chief Justice Roberts talks a good game about stare decisis and stability. But time and time again, he reads precedent in such a distorted fashion as to effectively rewrite it. His superlative writing style often blurs the process. But careful readers–and dissenters–can see through his transparent ruses. Indeed, Roberts’s self-professed humility depends on everyone being too dumb to see what he is really doing.

For example, in June Medical, he basically discarded Whole Woman’s Health, and reverted back to Casey. And in Espinoza, he walked back Footnote Three of Trinity Lutheran. He is slowly interring Justice Kennedy’s jurisprudence of doubt. Soon enough, I suspect he will roll back Fisher II and restore a constrained-notion of Grutter as the correct precedent for affirmative action.

Roberts made similar moves in Seila Law, but his target was the old boss: Chief Justice Rehnquist. Without much fanfare, Roberts effectively rewrote Morrison v. Olson. He did so with such nonchalance that you may have missed it.

Under the Ethics in Government Act, the independent counsel was appointed by a three-judge panel. Under the Appointments Clause, only “inferior” officers can be appointed by the “courts of law.” If Alexia Morrison was a “principal” officer, then her appointment was invalid. Chief Justice Rehnquist concluded that Morrison was an “inferior” officer who could be appointed by the “courts of law.”

Later in the opinion, Rehnquist considered whether the independent counsel statute, as a whole, violates the separation of powers: could Congress insulate the independent counsel from removal? Here, Rehnquist found the answer was no. The independence of the counsel did not unduly burden the President’s Article II powers. But Morrison’s “inferior” status played no role, whatsoever, in that analysis. It was irrelevant. Yet, in Seila Law, Chief Justice Roberts limited Morrison’s separation-of-powers analysis to “inferior” officers. He wrote:

And in United States v. Perkins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

Roberts adds later.

Although the independent counsel was a single person and performed “law enforcement functions that typically have been undertaken by officials within the Executive Branch,” we concluded that the removal protections did not unduly interfere with the functioning of the Executive Branch because “the independent counsel [was] an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority.”

That’s not what Morrison held. Here is the full passage from Rehnquist’s opinion:

Considering for the moment the “good cause” removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are “executive” in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President’s need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.

The fact that Morrison was an “inferior” officer, rather than a “principal” officer, was irrelevant for the separation-of-powers analysis. After Seila, presumably, Morrison has nothing to say about tenure protections imposed on “principal” officers. Without missing a beat, Roberts gutted Morrison.

As a matter of first principles, I probably agree with this analysis. But it quietly deviates from precedent. Roberts’s fidelity to stare decisis does not include following precedents as written. And we all know it.

Justice Kagan, in dissent, shredded the Chief on his flawed reading of Morrison.

The majority’s description of Morrison, see ante, at 15– 16, is not true to the decision. (Mostly, it seems, the majority just wishes the case would go away.)

You don’t say. She continues:

Second, as all that suggests, Morrison is not limited to inferior officers. In the eight pages addressing the removal issue, the Court constantly spoke of “officers” and “officials” in general. By contrast, the Court there used the word “inferior” in just one sentence (which of course the majority quotes), when applying its general standard to the case’s facts.

She’s right. Kagan also notes that the Roberts decision is inconsistent with Justice Scalia’s canonical dissent:

Indeed, Justice Scalia’s dissent emphasized that the counsel’s inferior-office status played no role in the Court’s decision. See id., at 724 (“The Court could have resolved the removal power issue in this case by simply relying” on that status, but did not). As Justice Scalia noted, the Court in United States v. Perkins (1886), had a century earlier allowed Congress to restrict the President’s removal power over inferior officers. See Morrison. Were that Morrison‘s basis, a simple citation would have sufficed.

I noted earlier that Roberts does note cite Scalia’s dissent once. Roberts wants this jurisprudence to be his; not Scalia’s. Now, he owns it.

Justice Kagan also asserts that Roberts rewrote Morrison v. Olson as it interpreted Humphrey’s Executor.

First, Morrison is no “exception” to a broader rule from Myers. Morrison echoed all of Humphrey’s criticism of the by-then infamous Myers “dicta.” 487 U. S., at 687. It again rejected the notion of an “all-inclusive” removal power. Ibid. It yet further confined Myers’ reach, makingclear that Congress could restrict the President’s removal of officials carrying out even the most traditional executivefunctions. And the decision, with care, set out the governing rule—again, that removal restrictions are permissible so long as they do not impede the President’s performance of his own constitutionally assigned duties.

Roberts turns around and accuses Kagan of rewriting Humphrey’s:

The dissent would have us ignore the reasoning of Humphrey’s Executor and instead apply the decision only as part of a reimagined Humphrey’s-through-Morrison framework. See post (KAGAN, J., concurring in judgment with respect to severability and dissenting in part) (hereinafter dissent). But we take the decision on its own terms, not through gloss added by a later Court in dicta.

I need to give this issue some more thought. The precise status of Humphrey’s Executor has always given me difficulty. Myers was clear. Humphrey’s muddied things, but standing along, was clear enough. Morrison altered Humphrey’s without saying so. And now Seila Law throws everything into chaos. This semester, I will really struggle to teach these cases as a coherent doctrine.

Going forward, here is how the Chief summarizes the caselaw:

Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States (1935), we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in United States v. Perkins (1886), and Morrison v. Olson (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

What is the rule? My colleague Randy Barnett’s description of NFIB v. Sebelius is appropriate for Seila Law: this far, but no farther. Whatever was upheld in Humphrey‘s and Morrison is permissible. But novel extensions are presumptively unconstitutional, and have to be defended.

One final note. During oral argument, Paul Clement–as amicus curiae–suggested a possible limiting principle to Congress’s authority to add tenure protections. Clement offered a “constitutional backstop”:

Second, there’s a constitutional backstop, an absolute constitutional backstop, which is those authorities that the Constitution assigns directly to the President –so the State Department, the Defense Department, pardon power; there’s a few others –those cannot be subject under any circumstances to anything other than at-will removal.

I observed:

In other words, if the Constitution assigns a power to the President, then the President’s supervision of the agencies that execute that power cannot be limited by a “for-cause” provision. Clement lists a few examples. First the State Department presumably premised on the President’s powers over foreign affairs. Second, the Defense Department, which involves the President’s powers as Commander in Chief. Third, the pardon power, which I think would relate to DOJ. These cabinet positions must be removable “at will.” I did not see this argument made in Clement’s brief; it was reserved for argument.

Justice Kagan, who appointed Clement, adopted this backstop: foreign affairs and military matters are different from domestic financial matters. She wrote:

…Congress took the first steps—which would launch a tradition—of distinguishing financial regulators from diplomatic and military officers. The latter mainly helped the President carry out his own constitutional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions.

She repeated this point in Footnote 6:

In one sense, the two-decade-long existence of the Tenure of Office Act reveals the 19th century political system’s comfort with expansive restrictions on presidential removal. But the ultimate repudiation of the law, and the broad historical consensus that it went too far, just as strongly shows the limits that system later accepted on legislative power—that Congress may not impose removal restrictions preventing the President from carrying out his own constitutionally assigned functions in areas like war or foreign affairs. See Morrison v. Olson, 487 U. S. 654, 689–691 (1988) (recognizing that limit as the constitutional standard).

And in Footnote 9:

If the only presidential duty at issue is the one to ensure faithful execution of the laws, a for-cause provision does not stand in the way: As Morrison recognized, it preserves authority in the President to ensure (just as the Take Care Clause requires) that an official is abiding by law. See 487 U. S., at 692. But now suppose an additional constitutional duty is implicated—relating, say, to the conduct of foreign affairs or war. To carry out those duties, the President needs advisers who will (beyond complying with law) help him devise and implement policy. And that means he needs the capacity to fire such advisers for disagreeing with his policy calls.

Roberts forcefully rejects this “constitutional backstop.”

The dissent claims to see a constitutional distinction between the President’s “own constitutional duties in foreign relations and war” and his duty to execute laws passed by Congress. Post, at 13. But the same Article that establishes the President’s foreign relations and war duties expressly entrusts him to take care that the laws be faithfully executed. And, from the perspective of the governed, it is far from clear that the President’s core and traditional powers present greater cause for concern than peripheral and modern ones. If anything, “[t]he growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.” Free Enterprise Fund, 561 U. S., at 499 (emphasis added).

Indeed, Roberts rejects Kagan’s entire theory of the Take Care Clause. He writes:

Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. …

The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52 (1926).

Here, Roberts writes that subordinates exercise executive power “on [the President’s] behalf.” And the Take Care Clause imposes on the President a duty to ensure that the subordinates faithfully execute the law. The unitary executive lives.

In March, I criticized the House General Counsel, Douglas Letter. He refused to offer any limiting principle. This case may be another instance where the client instructed the attorney to avoid taking a position that would not hold up. Clement tried, and it was rejected. Letter did not give up any concessions that could have backfire.

from Latest – Reason.com https://ift.tt/2NJNXGx
via IFTTT

Chief Justice Roberts Rewrote Morrison v. Olson

Chief Justice Roberts talks a good game about stare decisis and stability. But time and time again, he reads precedent in such a distorted fashion as to effectively rewrite it. His superlative writing style often blurs the process. But careful readers–and dissenters–can see through his transparent ruses. Indeed, Roberts’s self-professed humility depends on everyone being too dumb to see what he is really doing.

For example, in June Medical, he basically discarded Whole Woman’s Health, and reverted back to Casey. And in Espinoza, he walked back Footnote Three of Trinity Lutheran. He is slowly interring Justice Kennedy’s jurisprudence of doubt. Soon enough, I suspect he will roll back Fisher II and restore a constrained-notion of Grutter as the correct precedent for affirmative action.

Roberts made similar moves in Seila Law, but his target was the old boss: Chief Justice Rehnquist. Without much fanfare, Roberts effectively rewrote Morrison v. Olson. He did so with such nonchalance that you may have missed it.

Under the Ethics in Government Act, the independent counsel was appointed by a three-judge panel. Under the Appointments Clause, only “inferior” officers can be appointed by the “courts of law.” If Alexia Morrison was a “principal” officer, then her appointment was invalid. Chief Justice Rehnquist concluded that Morrison was an “inferior” officer who could be appointed by the “courts of law.”

Later in the opinion, Rehnquist considered whether the independent counsel statute, as a whole, violates the separation of powers: could Congress insulate the independent counsel from removal? Here, Rehnquist found the answer was no. The independence of the counsel did not unduly burden the President’s Article II powers. But Morrison’s “inferior” status played no role, whatsoever, in that analysis. It was irrelevant. Yet, in Seila Law, Chief Justice Roberts limited Morrison’s separation-of-powers analysis to “inferior” officers. He wrote:

And in United States v. Perkins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

Roberts adds later.

Although the independent counsel was a single person and performed “law enforcement functions that typically have been undertaken by officials within the Executive Branch,” we concluded that the removal protections did not unduly interfere with the functioning of the Executive Branch because “the independent counsel [was] an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority.”

That’s not what Morrison held. Here is the full passage from Rehnquist’s opinion:

Considering for the moment the “good cause” removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are “executive” in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President’s need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.

The fact that Morrison was an “inferior” officer, rather than a “principal” officer, was irrelevant for the separation-of-powers analysis. After Seila, presumably, Morrison has nothing to say about tenure protections imposed on “principal” officers. Without missing a beat, Roberts gutted Morrison.

As a matter of first principles, I probably agree with this analysis. But it quietly deviates from precedent. Roberts’s fidelity to stare decisis does not include following precedents as written. And we all know it.

Justice Kagan, in dissent, shredded the Chief on his flawed reading of Morrison.

The majority’s description of Morrison, see ante, at 15– 16, is not true to the decision. (Mostly, it seems, the majority just wishes the case would go away.)

You don’t say. She continues:

Second, as all that suggests, Morrison is not limited to inferior officers. In the eight pages addressing the removal issue, the Court constantly spoke of “officers” and “officials” in general. By contrast, the Court there used the word “inferior” in just one sentence (which of course the majority quotes), when applying its general standard to the case’s facts.

She’s right. Kagan also notes that the Roberts decision is inconsistent with Justice Scalia’s canonical dissent:

Indeed, Justice Scalia’s dissent emphasized that the counsel’s inferior-office status played no role in the Court’s decision. See id., at 724 (“The Court could have resolved the removal power issue in this case by simply relying” on that status, but did not). As Justice Scalia noted, the Court in United States v. Perkins (1886), had a century earlier allowed Congress to restrict the President’s removal power over inferior officers. See Morrison. Were that Morrison‘s basis, a simple citation would have sufficed.

I noted earlier that Roberts does note cite Scalia’s dissent once. Roberts wants this jurisprudence to be his; not Scalia’s. Now, he owns it.

Justice Kagan also asserts that Roberts rewrote Morrison v. Olson as it interpreted Humphrey’s Executor.

First, Morrison is no “exception” to a broader rule from Myers. Morrison echoed all of Humphrey’s criticism of the by-then infamous Myers “dicta.” 487 U. S., at 687. It again rejected the notion of an “all-inclusive” removal power. Ibid. It yet further confined Myers’ reach, makingclear that Congress could restrict the President’s removal of officials carrying out even the most traditional executivefunctions. And the decision, with care, set out the governing rule—again, that removal restrictions are permissible so long as they do not impede the President’s performance of his own constitutionally assigned duties.

Roberts turns around and accuses Kagan of rewriting Humphrey’s:

The dissent would have us ignore the reasoning of Humphrey’s Executor and instead apply the decision only as part of a reimagined Humphrey’s-through-Morrison framework. See post (KAGAN, J., concurring in judgment with respect to severability and dissenting in part) (hereinafter dissent). But we take the decision on its own terms, not through gloss added by a later Court in dicta.

I need to give this issue some more thought. The precise status of Humphrey’s Executor has always given me difficulty. Myers was clear. Humphrey’s muddied things, but standing along, was clear enough. Morrison altered Humphrey’s without saying so. And now Seila Law throws everything into chaos. This semester, I will really struggle to teach these cases as a coherent doctrine.

Going forward, here is how the Chief summarizes the caselaw:

Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States (1935), we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in United States v. Perkins (1886), and Morrison v. Olson (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

What is the rule? My colleague Randy Barnett’s description of NFIB v. Sebelius is appropriate for Seila Law: this far, but no farther. Whatever was upheld in Humphrey‘s and Morrison is permissible. But novel extensions are presumptively unconstitutional, and have to be defended.

One final note. During oral argument, Paul Clement–as amicus curiae–suggested a possible limiting principle to Congress’s authority to add tenure protections. Clement offered a “constitutional backstop”:

Second, there’s a constitutional backstop, an absolute constitutional backstop, which is those authorities that the Constitution assigns directly to the President –so the State Department, the Defense Department, pardon power; there’s a few others –those cannot be subject under any circumstances to anything other than at-will removal.

I observed:

In other words, if the Constitution assigns a power to the President, then the President’s supervision of the agencies that execute that power cannot be limited by a “for-cause” provision. Clement lists a few examples. First the State Department presumably premised on the President’s powers over foreign affairs. Second, the Defense Department, which involves the President’s powers as Commander in Chief. Third, the pardon power, which I think would relate to DOJ. These cabinet positions must be removable “at will.” I did not see this argument made in Clement’s brief; it was reserved for argument.

Justice Kagan, who appointed Clement, adopted this backstop: foreign affairs and military matters are different from domestic financial matters. She wrote:

…Congress took the first steps—which would launch a tradition—of distinguishing financial regulators from diplomatic and military officers. The latter mainly helped the President carry out his own constitutional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions.

She repeated this point in Footnote 6:

In one sense, the two-decade-long existence of the Tenure of Office Act reveals the 19th century political system’s comfort with expansive restrictions on presidential removal. But the ultimate repudiation of the law, and the broad historical consensus that it went too far, just as strongly shows the limits that system later accepted on legislative power—that Congress may not impose removal restrictions preventing the President from carrying out his own constitutionally assigned functions in areas like war or foreign affairs. See Morrison v. Olson, 487 U. S. 654, 689–691 (1988) (recognizing that limit as the constitutional standard).

And in Footnote 9:

If the only presidential duty at issue is the one to ensure faithful execution of the laws, a for-cause provision does not stand in the way: As Morrison recognized, it preserves authority in the President to ensure (just as the Take Care Clause requires) that an official is abiding by law. See 487 U. S., at 692. But now suppose an additional constitutional duty is implicated—relating, say, to the conduct of foreign affairs or war. To carry out those duties, the President needs advisers who will (beyond complying with law) help him devise and implement policy. And that means he needs the capacity to fire such advisers for disagreeing with his policy calls.

Roberts forcefully rejects this “constitutional backstop.”

The dissent claims to see a constitutional distinction between the President’s “own constitutional duties in foreign relations and war” and his duty to execute laws passed by Congress. Post, at 13. But the same Article that establishes the President’s foreign relations and war duties expressly entrusts him to take care that the laws be faithfully executed. And, from the perspective of the governed, it is far from clear that the President’s core and traditional powers present greater cause for concern than peripheral and modern ones. If anything, “[t]he growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.” Free Enterprise Fund, 561 U. S., at 499 (emphasis added).

Indeed, Roberts rejects Kagan’s entire theory of the Take Care Clause. He writes:

Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. …

The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52 (1926).

Here, Roberts writes that subordinates exercise executive power “on [the President’s] behalf.” And the Take Care Clause imposes on the President a duty to ensure that the subordinates faithfully execute the law. The unitary executive lives.

In March, I criticized the House General Counsel, Douglas Letter. He refused to offer any limiting principle. This case may be another instance where the client instructed the attorney to avoid taking a position that would not hold up. Clement tried, and it was rejected. Letter did not give up any concessions that could have backfire.

from Latest – Reason.com https://ift.tt/2NJNXGx
via IFTTT

After 3 Weeks and 4 Shootings, Seattle Dismantles Its ‘Autonomous Zone’

twitter-autonomouszone

The dream is over. This morning Seattle police cleared away the last remnants of an “autonomous zone” established by anti-police brutality protesters in the city’s Capitol Hill neighborhood.

Today’s sweep follows weeks of deteriorating relations between protesters in the so-called Capitol Hill Autonomous Zone (CHAZ), or Capitol Hill Occupied Protest (CHOP), and Seattle Mayor Jenny Durkan, who had first praised the perma-protest before taking a tougher line in response to violent incidents that happened in and near the zone.

An executive order signed yesterday by Durkan instructed the Seattle Police Department to clear the park and surrounding city blocks that protesters have been occupying for the better part of three weeks. Anyone who refused to clear the area could be subjected to arrest, per Durkan’s order.

“I support peaceful demonstrations. Black Lives Matter…but enough is enough,” said Seattle Police Chief Carmen Best in a statement. “The CHOP has become lawless and brutal. Four shootings—two fatal—robberies, assaults, violence, and countless property crimes have occurred in this several block area.”

Video from KING5 reporter Michael Crowe shows police officers advancing up the street and occasionally fighting with protesters, some of whom had reportedly thrown cones at the officers.

Best told local media that at least 13 people had been arrested as part of clearing the CHOP this morning. The Capitol Hill Seattle Blog reports at least 31 arrests stemming from the operation.

The CHOP officially got its start on June 8, when police abandoned their Eastern Precinct building following a series of escalating clashes between law enforcement and demonstrators.

In the wake of the police’s retreat, protestors reassembled barricades around the abandoned precinct building and later occupied the nearby Cal Anderson Park. The area quickly developed an Occupy Wall Street-like vibe, with activists giving speeches, staging demonstrations, holding film screenings, and even starting a community garden in support of the Black Lives Matter movement and defunding the police.

Durkan visited the CHOP and even defended it as an example of democracy in action following criticism of her handling of the zone by President Donald Trump. City agencies also provided protesters with sturdier barricades, portable toilets, and helped to clear trash from the area.

However, a series of shootings in and near the CHOP, which have resulted in two deaths, plus the growing annoyance of businesses and property owners—some of whom had filed a class-action lawsuit against the city for tolerating the CHOP—led Durkan to take a tougher line.

from Latest – Reason.com https://ift.tt/38jv9Hn
via IFTTT

Florida Just Passed the Most Sweeping Occupational Licensing Reform in History

ipurestockxfour133620

Sweeping reforms signed into law by Florida Gov. Ron DeSantis on Tuesday will loosen or abolish occupational licensing regulations across more than 30 professions, cutting red tape for potentially thousands of workers in the state.

The Occupational Freedom and Opportunity Act, which cleared the state legislature with overwhelming bipartisan support earlier this year, “will save thousands of Floridians both time and money for years to come,” DeSantis said in a statement announcing his signing of the bill.

State Rep. Blaise Ingoglia (R–Spring Hill), the bill’s sponsor, called it the largest license deregulation effort in Florida history. According to the Institute for Justice, a libertarian law firm that advocates for licensing reform and sues states over unfair licensing laws, Florida’s House Bill 1193 (H.B. 1193) might be an even bigger deal. In a statement, the institute said the bill “repeals more occupational licensing laws than any licensing reform ever passed by any other state.”

The bill fully repeals some of the state’s most unnecessary licensing laws, including those that previously governed interior designers, hair braiders, and boxing match timekeepers. It loosens the state’s cosmetology licensing laws to allow a wide range of hair and nail styling activities to take place outside of licensed salons—a particularly timely reform in the midst of the coronavirus pandemic, as it will pave the way for stylists to make house calls.

Dieticians and nutritionists will be able to work without fear of being targetted by sting operations and threatened with jail time simply for the supposed crime of giving out tips about healthy eating. The new law will allow “any person who provides information, wellness recommendations, or advice concerning nutrition” to do so without a license as long as they do not provide those services to individuals under the direct care of a physician for medical reasons, or advertise themselves as medical professionals.

The bill also eliminates separate business licenses for architects, geologists, and landscape architects who already hold individual licenses in those fields. (Although that does raise the question of why geologists and landscape architects need to be licensed in the first place; hopefully DeSantis will get around to fixing that next.)

Importantly, the new law follows on some reforms passed by Arizona last year to expand the recognition of out-of-state licenses. Barbers and cosmetologists licensed in other states will be allowed to practice their trades in Florida without having to get re-licensed, and the law instructs the state Department of Business and Professional Regulation to begin the process of identifying other professions where similar reciprocity could be offered.

The new law also clears up a longstanding disagreement over whether state or local officials control the licensing process for food trucks by placing health and safety issues under state authority. Local officials will still be able to keep food trucks out of certain areas with zoning laws, but they won’t be able to pile additional licensing requirements on top of existing state rules to block vendors from operating. Florida is just the third state to pass such a law, according to the Institute for Justice.

“Florida’s reform will fuel economic growth and open up opportunity to entry-level entrepreneurs throughout the state,” says Scott Bullock, president of the Institute for Justice.

Licensing reform is on the agenda in many state capitols. More than 1,000 licensing reform bills were introduced last year, according to the National Conference of State Legislatures, which tracks state-level legislation. But lawmakers everywhere are now chasing Florida, which has raised the bar for what should be considered achievable.

from Latest – Reason.com https://ift.tt/2BTgiHM
via IFTTT

Would Derek Chauvin Receive Qualified Immunity for Killing George Floyd?

George-Floyd-arrest-5-25-20-cellphone-video

Derek Chauvin, the now-former Minneapolis police officer who kneeled on George Floyd’s neck for more than eight minutes while arresting him for passing a counterfeit $20 bill on Memorial Day, has been charged with murder and manslaughter for causing Floyd’s death by using excessive force. But whether or not Chauvin is convicted, it is not clear that he would be liable under 42 USC 1983, a federal statute that allows lawsuits against police officers who violate people’s constitutional rights.

Benjamin Crump, an attorney who represents Floyd’s family, plans to file a lawsuit under that statute. Given the relevant precedents in the 8th Circuit, which includes Minnesota, it is by no means a surefire winner. The uncertainty speaks volumes about the leeway that courts tend to give cops in excessive force cases and the extent to which the doctrine of qualified immunity, which bars claims under 42 USC 1983 when the rights police allegedly violated were not “clearly established,” shields them from liability for outrageous conduct.

Chauvin, assisted by two other officers who also face criminal charges, kneeled on Floyd’s neck while he was handcuffed and restrained in a prone position. The autopsy report from the Hennepin County Medical Examiner’s Office describes the cause of death as “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” An independent autopsy commissioned by Floyd’s family said he died from “mechanical asphyxiation.” Both reports agreed that the manner of death was homicide.

In two recent cases with broadly similar facts—a handcuffed detainee who died while restrained in a prone position by several officers—the U.S. Court of Appeals for the 8th Circuit blocked claims under 42 USC 1983. Those cases may not be dispositive, since both involved detainees who were actively resisting. Although Chauvin and the other officers said Floyd initially resisted their attempts to put him in a squad car, he was under control and posed no apparent threat to them while Chauvin was kneeling on his neck. But the 8th Circuit does not seem to have previously addressed a situation quite like that, and the lack of sufficiently specific precedent is enough to trigger qualified immunity.

In the 2017 case Ryan v. Armstrong, the 8th Circuit considered the 2012 death of Jerome Harrell, who surrendered himself at the Stearns County jail in St. Cloud, Minnesota, because he had outstanding traffic warrants. During his night in jail, the court noted, Harrell “scream[ed], howl[ed], and bang[ed] against his cell door for eight hours.” The next morning, when correctional officers tried to remove him from his cell, Harrell resisted them. They handcuffed him, shackled his legs, tased him twice, and pinned him to the floor face down for three minutes.

Five minutes after the officers entered Harrell’s cell, he was no longer responsive, and jail staff could not revive him. He was pronounced dead at a hospital later that morning. The official autopsy report described the incident as a “sudden unexpected death during restraint.”

The 8th Circuit ruled that the use of force against Harrell was objectively reasonable in the circumstances. “Harrell was actively resisting the extraction procedure by
ignoring directives to lie down on his bunk and resisting the defendants’ efforts to
subdue him once they entered his cell,” the court said. “We, therefore, conclude that the defendants are entitled to qualified immunity on the trustee’s excessive force claim.”

The 2020 case Lombardo v. City of St. Louis involved the death of Nicholas Gilbert, who was arrested by St. Louis police officers in 2015 for trespassing in a condemned building and failure to appear in court after receiving a traffic ticket. “While Gilbert was in the cell,” the court noted, “the officers observed him engaging in unusual behavior, including waving his hands in the air, rattling the bars of his cell, throwing his shoe, and bobbing up and down.” One officer “observed Gilbert tie an article of clothing around the bars of his cell and his neck.” Worried that Gilbert was trying to hang himself, another officer entered the cell but found him with nothing around his neck.

The officer nevertheless started to handcuff Gilbert, precipitating a struggle in which several officers eventually handcuffed him, shackled his legs, and pinned him to the ground on his stomach. “Throughout the altercation,” the court said, “the officers controlled Gilbert’s limbs at his shoulders, biceps, legs, and lower or middle torso. While continuing to resist, Gilbert tried to raise his chest up and told the officers to stop because they were hurting him. After fifteen minutes of struggle in the prone position, Gilbert stopped resisting and the officers rolled him from his stomach onto his side.”

At that point, Gilbert had already stopped breathing, and the officers could not find a pulse. He was transported to a hospital, where he was pronounced dead. The official autopsy report said “the cause of death was arteriosclerotic heart disease exacerbated by methamphetamine and forcible restraint.” An independent medical report commissioned by Gilbert’s family said the cause was “forcible restraint inducing asphyxia.”

Citing its decision in Ryan, the 8th Circuit concluded that “the Officers’ actions did not amount to constitutionally excessive force.” The court noted that “the Officers held Gilbert in the prone position only until he stopped actively fighting against his restraints and the Officers.” And “once he stopped resisting, the Officers rolled Gilbert out of the prone position.”

By contrast with Harrell and Gilbert, Floyd was not resisting at the time of his death, except to repeatedly complain that he could not breathe. Presumably, that distinction would make a difference in the constitutional analysis, although we can’t be sure.

Another seemingly relevant difference is that Chauvin used a neck restraint, while the defendants in Ryan and Lombardo applied pressure to other parts of the detainees’ bodies. Other federal appeals courts have ruled that neck restraints are reasonable under the Fourth Amendment in some situations, primarily when the suspect is violently resisting and/or has a history of doing so, and unreasonable in others, primarily when those circumstances are lacking.

Even if the 8th Circuit followed that general trend and concluded that Chauvin’s actions were unconstitutional, it could still decide that the law on that point was not clearly established at the time of Floyd’s arrest, meaning the excessive force claim would be barred by qualified immunity. It could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut.

Other 8th Circuit decisions have recognized that the gratuitous use of force during an arrest violates the Fourth Amendment, even when the outcome is not fatal. But that general principle is not enough to defeat qualified immunity in cases with different details.

Last year, for example, the 8th Circuit granted qualified immunity to a Nebraska sheriff’s deputy who, while responding to an erroneous “domestic assault” report, lifted the purported victim in a bear hug and threw her to the ground, knocking her unconscious and breaking her collarbone. “It was not clearly established in May 2014 that a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer,” the court concluded. Last month the Supreme Court declined to review that decision.

To avoid dismissal of their claims, says UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, Floyd’s family “would have to find cases in which earlier defendants were found to have violated the law in precisely the same way.” Thanks to qualified immunity, suggests Brett Kittredge, director of communications at the Mississippi Center for Public Policy, “Floyd’s family would likely have their claims against the officers dismissed because there isn’t a case in the 8th Circuit…or the U.S. Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nine minutes.”

We may never find out. Last year, the city of Minneapolis reached a $20 million settlement with the family of Justine Ruszczyk Damond, who was shot to death by Officer Mohamed Noor after she called 911 to report a possible assault in the alley behind her house. Noor had already been convicted of third-degree murder. The Minneapolis Star Tribune reports that “legal experts” think the payout in Floyd’s case could “dwarf” that settlement.

from Latest – Reason.com https://ift.tt/2VBu74u
via IFTTT

After 3 Weeks and 4 Shootings, Seattle Dismantles Its ‘Autonomous Zone’

twitter-autonomouszone

The dream is over. This morning Seattle police cleared away the last remnants of an “autonomous zone” established by anti-police brutality protesters in the city’s Capitol Hill neighborhood.

Today’s sweep follows weeks of deteriorating relations between protesters in the so-called Capitol Hill Autonomous Zone (CHAZ), or Capitol Hill Occupied Protest (CHOP), and Seattle Mayor Jenny Durkan, who had first praised the perma-protest before taking a tougher line in response to violent incidents that happened in and near the zone.

An executive order signed yesterday by Durkan instructed the Seattle Police Department to clear the park and surrounding city blocks that protesters have been occupying for the better part of three weeks. Anyone who refused to clear the area could be subjected to arrest, per Durkan’s order.

“I support peaceful demonstrations. Black Lives Matter…but enough is enough,” said Seattle Police Chief Carmen Best in a statement. “The CHOP has become lawless and brutal. Four shootings—two fatal—robberies, assaults, violence, and countless property crimes have occurred in this several block area.”

Video from KING5 reporter Michael Crowe shows police officers advancing up the street and occasionally fighting with protesters, some of whom had reportedly thrown cones at the officers.

Best told local media that at least 13 people had been arrested as part of clearing the CHOP this morning. The Capitol Hill Seattle Blog reports at least 31 arrests stemming from the operation.

The CHOP officially got its start on June 8, when police abandoned their Eastern Precinct building following a series of escalating clashes between law enforcement and demonstrators.

In the wake of the police’s retreat, protestors reassembled barricades around the abandoned precinct building and later occupied the nearby Cal Anderson Park. The area quickly developed an Occupy Wall Street-like vibe, with activists giving speeches, staging demonstrations, holding film screenings, and even starting a community garden in support of the Black Lives Matter movement and defunding the police.

Durkan visited the CHOP and even defended it as an example of democracy in action following criticism of her handling of the zone by President Donald Trump. City agencies also provided protesters with sturdier barricades, portable toilets, and helped to clear trash from the area.

However, a series of shootings in and near the CHOP, which have resulted in two deaths, plus the growing annoyance of businesses and property owners—some of whom had filed a class-action lawsuit against the city for tolerating the CHOP—led Durkan to take a tougher line.

from Latest – Reason.com https://ift.tt/38jv9Hn
via IFTTT

Florida Just Passed the Most Sweeping Occupational Licensing Reform in History

ipurestockxfour133620

Sweeping reforms signed into law by Florida Gov. Ron DeSantis on Tuesday will loosen or abolish occupational licensing regulations across more than 30 professions, cutting red tape for potentially thousands of workers in the state.

The Occupational Freedom and Opportunity Act, which cleared the state legislature with overwhelming bipartisan support earlier this year, “will save thousands of Floridians both time and money for years to come,” DeSantis said in a statement announcing his signing of the bill.

State Rep. Blaise Ingoglia (R–Spring Hill), the bill’s sponsor, called it the largest license deregulation effort in Florida history. According to the Institute for Justice, a libertarian law firm that advocates for licensing reform and sues states over unfair licensing laws, Florida’s House Bill 1193 (H.B. 1193) might be an even bigger deal. In a statement, the institute said the bill “repeals more occupational licensing laws than any licensing reform ever passed by any other state.”

The bill fully repeals some of the state’s most unnecessary licensing laws, including those that previously governed interior designers, hair braiders, and boxing match timekeepers. It loosens the state’s cosmetology licensing laws to allow a wide range of hair and nail styling activities to take place outside of licensed salons—a particularly timely reform in the midst of the coronavirus pandemic, as it will pave the way for stylists to make house calls.

Dieticians and nutritionists will be able to work without fear of being targetted by sting operations and threatened with jail time simply for the supposed crime of giving out tips about healthy eating. The new law will allow “any person who provides information, wellness recommendations, or advice concerning nutrition” to do so without a license as long as they do not provide those services to individuals under the direct care of a physician for medical reasons, or advertise themselves as medical professionals.

The bill also eliminates separate business licenses for architects, geologists, and landscape architects who already hold individual licenses in those fields. (Although that does raise the question of why geologists and landscape architects need to be licensed in the first place; hopefully DeSantis will get around to fixing that next.)

Importantly, the new law follows on some reforms passed by Arizona last year to expand the recognition of out-of-state licenses. Barbers and cosmetologists licensed in other states will be allowed to practice their trades in Florida without having to get re-licensed, and the law instructs the state Department of Business and Professional Regulation to begin the process of identifying other professions where similar reciprocity could be offered.

The new law also clears up a longstanding disagreement over whether state or local officials control the licensing process for food trucks by placing health and safety issues under state authority. Local officials will still be able to keep food trucks out of certain areas with zoning laws, but they won’t be able to pile additional licensing requirements on top of existing state rules to block vendors from operating. Florida is just the third state to pass such a law, according to the Institute for Justice.

“Florida’s reform will fuel economic growth and open up opportunity to entry-level entrepreneurs throughout the state,” says Scott Bullock, president of the Institute for Justice.

Licensing reform is on the agenda in many state capitols. More than 1,000 licensing reform bills were introduced last year, according to the National Conference of State Legislatures, which tracks state-level legislation. But lawmakers everywhere are now chasing Florida, which has raised the bar for what should be considered achievable.

from Latest – Reason.com https://ift.tt/2BTgiHM
via IFTTT

Florida Just Passed the Most Sweeping Occupational Licensing Reform in History

ipurestockxfour133620

Sweeping reforms signed into law by Florida Gov. Ron DeSantis on Tuesday will loosen or abolish occupational licensing regulations across more than 30 professions, cutting red tape for potentially thousands of workers in the state.

The Occupational Freedom and Opportunity Act, which cleared the state legislature with overwhelming bipartisan support earlier this year, “will save thousands of Floridians both time and money for years to come,” DeSantis said in a statement announcing his signing of the bill.

State Rep. Blaise Ingoglia (R–Spring Hill), the bill’s sponsor, called it the largest license deregulation effort in Florida history. According to the Institute for Justice, a libertarian law firm that advocates for licensing reform and sues states over unfair licensing laws, Florida’s House Bill 1193 (H.B. 1193) might be an even bigger deal. In a statement, the institute said the bill “repeals more occupational licensing laws than any licensing reform ever passed by any other state.”

The bill fully repeals some of the state’s most unnecessary licensing laws, including those that previously governed interior designers, hair braiders, and boxing match timekeepers. It loosens the state’s cosmetology licensing laws to allow a wide range of hair and nail styling activities to take place outside of licensed salons—a particularly timely reform in the midst of the coronavirus pandemic, as it will pave the way for stylists to make house calls.

Dieticians and nutritionists will be able to work without fear of being targetted by sting operations and threatened with jail time simply for the supposed crime of giving out tips about healthy eating. The new law will allow “any person who provides information, wellness recommendations, or advice concerning nutrition” to do so without a license as long as they do not provide those services to individuals under the direct care of a physician for medical reasons, or advertise themselves as medical professionals.

The bill also eliminates separate business licenses for architects, geologists, and landscape architects who already hold individual licenses in those fields. (Although that does raise the question of why geologists and landscape architects need to be licensed in the first place; hopefully DeSantis will get around to fixing that next.)

Importantly, the new law follows on some reforms passed by Arizona last year to expand the recognition of out-of-state licenses. Barbers and cosmetologists licensed in other states will be allowed to practice their trades in Florida without having to get re-licensed, and the law instructs the state Department of Business and Professional Regulation to begin the process of identifying other professions where similar reciprocity could be offered.

The new law also clears up a longstanding disagreement over whether state or local officials control the licensing process for food trucks by placing health and safety issues under state authority. Local officials will still be able to keep food trucks out of certain areas with zoning laws, but they won’t be able to pile additional licensing requirements on top of existing state rules to block vendors from operating. Florida is just the third state to pass such a law, according to the Institute for Justice.

“Florida’s reform will fuel economic growth and open up opportunity to entry-level entrepreneurs throughout the state,” says Scott Bullock, president of the Institute for Justice.

Licensing reform is on the agenda in many state capitols. More than 1,000 licensing reform bills were introduced last year, according to the National Conference of State Legislatures, which tracks state-level legislation. But lawmakers everywhere are now chasing Florida, which has raised the bar for what should be considered achievable.

from Latest – Reason.com https://ift.tt/2BTgiHM
via IFTTT

Would Derek Chauvin Receive Qualified Immunity for Killing George Floyd?

George-Floyd-arrest-5-25-20-cellphone-video

Derek Chauvin, the now-former Minneapolis police officer who kneeled on George Floyd’s neck for more than eight minutes while arresting him for passing a counterfeit $20 bill on Memorial Day, has been charged with murder and manslaughter for causing Floyd’s death by using excessive force. But whether or not Chauvin is convicted, it is not clear that he would be liable under 42 USC 1983, a federal statute that allows lawsuits against police officers who violate people’s constitutional rights.

Benjamin Crump, an attorney who represents Floyd’s family, plans to file a lawsuit under that statute. Given the relevant precedents in the 8th Circuit, which includes Minnesota, it is by no means a surefire winner. The uncertainty speaks volumes about the leeway that courts tend to give cops in excessive force cases and the extent to which the doctrine of qualified immunity, which bars claims under 42 USC 1983 when the rights police allegedly violated were not “clearly established,” shields them from liability for outrageous conduct.

Chauvin, assisted by two other officers who also face criminal charges, kneeled on Floyd’s neck while he was handcuffed and restrained in a prone position. The autopsy report from the Hennepin County Medical Examiner’s Office describes the cause of death as “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” An independent autopsy commissioned by Floyd’s family said he died from “mechanical asphyxiation.” Both reports agreed that the manner of death was homicide.

In two recent cases with broadly similar facts—a handcuffed detainee who died while restrained in a prone position by several officers—the U.S. Court of Appeals for the 8th Circuit blocked claims under 42 USC 1983. Those cases may not be dispositive, since both involved detainees who were actively resisting. Although Chauvin and the other officers said Floyd initially resisted their attempts to put him in a squad car, he was under control and posed no apparent threat to them while Chauvin was kneeling on his neck. But the 8th Circuit does not seem to have previously addressed a situation quite like that, and the lack of sufficiently specific precedent is enough to trigger qualified immunity.

In the 2017 case Ryan v. Armstrong, the 8th Circuit considered the 2012 death of Jerome Harrell, who surrendered himself at the Stearns County jail in St. Cloud, Minnesota, because he had outstanding traffic warrants. During his night in jail, the court noted, Harrell “scream[ed], howl[ed], and bang[ed] against his cell door for eight hours.” The next morning, when correctional officers tried to remove him from his cell, Harrell resisted them. They handcuffed him, shackled his legs, tased him twice, and pinned him to the floor face down for three minutes.

Five minutes after the officers entered Harrell’s cell, he was no longer responsive, and jail staff could not revive him. He was pronounced dead at a hospital later that morning. The official autopsy report described the incident as a “sudden unexpected death during restraint.”

The 8th Circuit ruled that the use of force against Harrell was objectively reasonable in the circumstances. “Harrell was actively resisting the extraction procedure by
ignoring directives to lie down on his bunk and resisting the defendants’ efforts to
subdue him once they entered his cell,” the court said. “We, therefore, conclude that the defendants are entitled to qualified immunity on the trustee’s excessive force claim.”

The 2020 case Lombardo v. City of St. Louis involved the death of Nicholas Gilbert, who was arrested by St. Louis police officers in 2015 for trespassing in a condemned building and failure to appear in court after receiving a traffic ticket. “While Gilbert was in the cell,” the court noted, “the officers observed him engaging in unusual behavior, including waving his hands in the air, rattling the bars of his cell, throwing his shoe, and bobbing up and down.” One officer “observed Gilbert tie an article of clothing around the bars of his cell and his neck.” Worried that Gilbert was trying to hang himself, another officer entered the cell but found him with nothing around his neck.

The officer nevertheless started to handcuff Gilbert, precipitating a struggle in which several officers eventually handcuffed him, shackled his legs, and pinned him to the ground on his stomach. “Throughout the altercation,” the court said, “the officers controlled Gilbert’s limbs at his shoulders, biceps, legs, and lower or middle torso. While continuing to resist, Gilbert tried to raise his chest up and told the officers to stop because they were hurting him. After fifteen minutes of struggle in the prone position, Gilbert stopped resisting and the officers rolled him from his stomach onto his side.”

At that point, Gilbert had already stopped breathing, and the officers could not find a pulse. He was transported to a hospital, where he was pronounced dead. The official autopsy report said “the cause of death was arteriosclerotic heart disease exacerbated by methamphetamine and forcible restraint.” An independent medical report commissioned by Gilbert’s family said the cause was “forcible restraint inducing asphyxia.”

Citing its decision in Ryan, the 8th Circuit concluded that “the Officers’ actions did not amount to constitutionally excessive force.” The court noted that “the Officers held Gilbert in the prone position only until he stopped actively fighting against his restraints and the Officers.” And “once he stopped resisting, the Officers rolled Gilbert out of the prone position.”

By contrast with Harrell and Gilbert, Floyd was not resisting at the time of his death, except to repeatedly complain that he could not breathe. Presumably, that distinction would make a difference in the constitutional analysis, although we can’t be sure.

Another seemingly relevant difference is that Chauvin used a neck restraint, while the defendants in Ryan and Lombardo applied pressure to other parts of the detainees’ bodies. Other federal appeals courts have ruled that neck restraints are reasonable under the Fourth Amendment in some situations, primarily when the suspect is violently resisting and/or has a history of doing so, and unreasonable in others, primarily when those circumstances are lacking.

Even if the 8th Circuit followed that general trend and concluded that Chauvin’s actions were unconstitutional, it could still decide that the law on that point was not clearly established at the time of Floyd’s arrest, meaning the excessive force claim would be barred by qualified immunity. It could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut.

Other 8th Circuit decisions have recognized that the gratuitous use of force during an arrest violates the Fourth Amendment, even when the outcome is not fatal. But that general principle is not enough to defeat qualified immunity in cases with different details.

Last year, for example, the 8th Circuit granted qualified immunity to a Nebraska sheriff’s deputy who, while responding to an erroneous “domestic assault” report, lifted the purported victim in a bear hug and threw her to the ground, knocking her unconscious and breaking her collarbone. “It was not clearly established in May 2014 that a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer,” the court concluded. Last month the Supreme Court declined to review that decision.

To avoid dismissal of their claims, says UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, Floyd’s family “would have to find cases in which earlier defendants were found to have violated the law in precisely the same way.” Thanks to qualified immunity, suggests Brett Kittredge, director of communications at the Mississippi Center for Public Policy, “Floyd’s family would likely have their claims against the officers dismissed because there isn’t a case in the 8th Circuit…or the U.S. Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nine minutes.”

We may never find out. Last year, the city of Minneapolis reached a $20 million settlement with the family of Justine Ruszczyk Damond, who was shot to death by Officer Mohamed Noor after she called 911 to report a possible assault in the alley behind her house. Noor had already been convicted of third-degree murder. The Minneapolis Star Tribune reports that “legal experts” think the payout in Floyd’s case could “dwarf” that settlement.

from Latest – Reason.com https://ift.tt/2VBu74u
via IFTTT

Would Derek Chauvin Receive Qualified Immunity for Killing George Floyd?

George-Floyd-arrest-5-25-20-cellphone-video

Derek Chauvin, the now-former Minneapolis police officer who kneeled on George Floyd’s neck for more than eight minutes while arresting him for passing a counterfeit $20 bill on Memorial Day, has been charged with murder and manslaughter for causing Floyd’s death by using excessive force. But whether or not Chauvin is convicted, it is not clear that he would be liable under 42 USC 1983, a federal statute that allows lawsuits against police officers who violate people’s constitutional rights.

Benjamin Crump, an attorney who represents Floyd’s family, plans to file a lawsuit under that statute. Given the relevant precedents in the 8th Circuit, which includes Minnesota, it is by no means a surefire winner. The uncertainty speaks volumes about the leeway that courts tend to give cops in excessive force cases and the extent to which the doctrine of qualified immunity, which bars claims under 42 USC 1983 when the rights police allegedly violated were not “clearly established,” shields them from liability for outrageous conduct.

Chauvin, assisted by two other officers who also face criminal charges, kneeled on Floyd’s neck while he was handcuffed and restrained in a prone position. The autopsy report from the Hennepin County Medical Examiner’s Office describes the cause of death as “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” An independent autopsy commissioned by Floyd’s family said he died from “mechanical asphyxiation.” Both reports agreed that the manner of death was homicide.

In two recent cases with broadly similar facts—a handcuffed detainee who died while restrained in a prone position by several officers—the U.S. Court of Appeals for the 8th Circuit blocked claims under 42 USC 1983. Those cases may not be dispositive, since both involved detainees who were actively resisting. Although Chauvin and the other officers said Floyd initially resisted their attempts to put him in a squad car, he was under control and posed no apparent threat to them while Chauvin was kneeling on his neck. But the 8th Circuit does not seem to have previously addressed a situation quite like that, and the lack of sufficiently specific precedent is enough to trigger qualified immunity.

In the 2017 case Ryan v. Armstrong, the 8th Circuit considered the 2012 death of Jerome Harrell, who surrendered himself at the Stearns County jail in St. Cloud, Minnesota, because he had outstanding traffic warrants. During his night in jail, the court noted, Harrell “scream[ed], howl[ed], and bang[ed] against his cell door for eight hours.” The next morning, when correctional officers tried to remove him from his cell, Harrell resisted them. They handcuffed him, shackled his legs, tased him twice, and pinned him to the floor face down for three minutes.

Five minutes after the officers entered Harrell’s cell, he was no longer responsive, and jail staff could not revive him. He was pronounced dead at a hospital later that morning. The official autopsy report described the incident as a “sudden unexpected death during restraint.”

The 8th Circuit ruled that the use of force against Harrell was objectively reasonable in the circumstances. “Harrell was actively resisting the extraction procedure by
ignoring directives to lie down on his bunk and resisting the defendants’ efforts to
subdue him once they entered his cell,” the court said. “We, therefore, conclude that the defendants are entitled to qualified immunity on the trustee’s excessive force claim.”

The 2020 case Lombardo v. City of St. Louis involved the death of Nicholas Gilbert, who was arrested by St. Louis police officers in 2015 for trespassing in a condemned building and failure to appear in court after receiving a traffic ticket. “While Gilbert was in the cell,” the court noted, “the officers observed him engaging in unusual behavior, including waving his hands in the air, rattling the bars of his cell, throwing his shoe, and bobbing up and down.” One officer “observed Gilbert tie an article of clothing around the bars of his cell and his neck.” Worried that Gilbert was trying to hang himself, another officer entered the cell but found him with nothing around his neck.

The officer nevertheless started to handcuff Gilbert, precipitating a struggle in which several officers eventually handcuffed him, shackled his legs, and pinned him to the ground on his stomach. “Throughout the altercation,” the court said, “the officers controlled Gilbert’s limbs at his shoulders, biceps, legs, and lower or middle torso. While continuing to resist, Gilbert tried to raise his chest up and told the officers to stop because they were hurting him. After fifteen minutes of struggle in the prone position, Gilbert stopped resisting and the officers rolled him from his stomach onto his side.”

At that point, Gilbert had already stopped breathing, and the officers could not find a pulse. He was transported to a hospital, where he was pronounced dead. The official autopsy report said “the cause of death was arteriosclerotic heart disease exacerbated by methamphetamine and forcible restraint.” An independent medical report commissioned by Gilbert’s family said the cause was “forcible restraint inducing asphyxia.”

Citing its decision in Ryan, the 8th Circuit concluded that “the Officers’ actions did not amount to constitutionally excessive force.” The court noted that “the Officers held Gilbert in the prone position only until he stopped actively fighting against his restraints and the Officers.” And “once he stopped resisting, the Officers rolled Gilbert out of the prone position.”

By contrast with Harrell and Gilbert, Floyd was not resisting at the time of his death, except to repeatedly complain that he could not breathe. Presumably, that distinction would make a difference in the constitutional analysis, although we can’t be sure.

Another seemingly relevant difference is that Chauvin used a neck restraint, while the defendants in Ryan and Lombardo applied pressure to other parts of the detainees’ bodies. Other federal appeals courts have ruled that neck restraints are reasonable under the Fourth Amendment in some situations, primarily when the suspect is violently resisting and/or has a history of doing so, and unreasonable in others, primarily when those circumstances are lacking.

Even if the 8th Circuit followed that general trend and concluded that Chauvin’s actions were unconstitutional, it could still decide that the law on that point was not clearly established at the time of Floyd’s arrest, meaning the excessive force claim would be barred by qualified immunity. It could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut.

Other 8th Circuit decisions have recognized that the gratuitous use of force during an arrest violates the Fourth Amendment, even when the outcome is not fatal. But that general principle is not enough to defeat qualified immunity in cases with different details.

Last year, for example, the 8th Circuit granted qualified immunity to a Nebraska sheriff’s deputy who, while responding to an erroneous “domestic assault” report, lifted the purported victim in a bear hug and threw her to the ground, knocking her unconscious and breaking her collarbone. “It was not clearly established in May 2014 that a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer,” the court concluded. Last month the Supreme Court declined to review that decision.

To avoid dismissal of their claims, says UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, Floyd’s family “would have to find cases in which earlier defendants were found to have violated the law in precisely the same way.” Thanks to qualified immunity, suggests Brett Kittredge, director of communications at the Mississippi Center for Public Policy, “Floyd’s family would likely have their claims against the officers dismissed because there isn’t a case in the 8th Circuit…or the U.S. Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nine minutes.”

We may never find out. Last year, the city of Minneapolis reached a $20 million settlement with the family of Justine Ruszczyk Damond, who was shot to death by Officer Mohamed Noor after she called 911 to report a possible assault in the alley behind her house. Noor had already been convicted of third-degree murder. The Minneapolis Star Tribune reports that “legal experts” think the payout in Floyd’s case could “dwarf” that settlement.

from Latest – Reason.com https://ift.tt/2VBu74u
via IFTTT